Denver and the West

Attorneys challenge venue change in Colorado prison murder case

Edward Montour was sentenced to death in 2003 for the murder of Limon prison worker Eric Autobee.

CASTLE ROCK — Defense attorneys for convicted killer Edward Montour and the prosecutors who are seeking the death penalty against him squared off in a Douglas County courtroom Tuesday to argue an elemental question: Why is Montour's case here?

Montour, who was already in prison for one murder, pleaded guilty in 2003 to killing Colorado corrections officer Eric Autobee at the state prison in Limon, which is in Lincoln County. Before he pleaded guilty, though, Montour's case was moved to Douglas County, which is also within the 18th Judicial District.

Prosecutor John Topolnicki said Tuesday the move was requested largely for logistical reasons: that the Douglas County jail could better accommodate Montour and that both sides would have a larger jury pool to draw from if the case went to trial.

But David Lane, one of Montour's attorneys, argued the choice of Douglas County was more cynical, saying the county's racial and socioeconomic makeup — white, wealthy and conservative — is an ideal habitat for prosecutors seeking the death penalty. It would be unconstitutional, Lane argued, for prosecutors to move the case to a different venue based on race or class of the jury pool.

"Their chances of getting the death penalty in a rich, white county are much better," Lane said during the hearing. "This is prosecutorial misconduct."

Topolnicki adamantly denied the accusation.

"They are allegations, none of which is true in any sense of the word," he said during court.

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The arguments added a weighty new debate to a case already freighted with them.

Montour chose to represent himself during most of his case, including when he pleaded guilty. Prosecutors still pursued a death sentence after his plea, and a judge sentenced Montour in 2003 to be executed, in accordance with state law at the time.

The U.S. Supreme Court subsequently ruled that only juries can sentence people to die, which reversed Montour's sentence and returned his case to the trial court for a new sentencing.

As evidence at Tuesday's hearing, Lane pointed to a prosecution memo that listed the pros and cons of trying Montour's case in Douglas or Lincoln counties. The memo notes that jurors in Douglas County are likely to be conservative and isolated from violence.

Topolnicki said Lincoln County's small size made it impossible for Montour to receive a fair trial there, necessitating a move. Lane agreed but questioned why Douglas County was the only county seriously discussed. Topolnicki said the Douglas County sheriff was willing to house Montour at his jail, though he did not say whether he asked other sheriffs to do the same.

Topolnicki said prosecutors bent over backward to look out for Montour's rights, for instance trying to provide him with whatever he needed to conduct his defense.

"If anything," former Lincoln County prosecutor Robert Watson, currently the 13th Judicial District attorney, said to Topolnicki during the hearing, "I thought you were overly protective."

But Susan Martin, who served as Montour's advisory attorney, said the venue change seemed abrupt to her.

"It was almost as if it had already been arranged and there wasn't any process in place to accomplish it," she said during Tuesday's hearing.

The hearing continues Wednesday. It is not clear when the judge will rule.